If a women seeks counseling at a pregnancy center that does not endorse or recommend abortion as an option, must the counselor explicitly state their position? In some parts of the country, the answer is yes.

Whether such rules are constitutional was the subject of a Dec. 7th debate between Catholic University law school professor Mark Rienzi and Professor Mark Graber of the University of Maryland Law School. The debate was held at Miles & Stockbridge, PC in Baltimore, and was sponsored by the Baltimore Lawyers’ Chapter of the Federalist Society for Law and Public Policy.

The issue grows out of speech regulations enacted last year in Baltimore and Montgomery County, Md., and in Austin, TX. A similar law is currently under consideration in New York City. Although the exact formulations vary, the regulations generally require pregnancy counselors who do not refer or provide for abortions to post signs stating their views on abortion, stating that they are not licensed healthcare providers, and/or stating that the government suggests women go speak to someone who is a licensed healthcare provider.

Rienzi argued that the laws are unconstitutional, chiefly because they force speakers to give government messages based solely on the content and viewpoint from which they speak.

“Speakers who want to talk about any other issue—even life-and-death medical issues like cancer, AIDS, and obesity—are left entirely unregulated. Only speakers who want to talk about pregnancy but oppose abortion have to give disclaimers,” he said.

Rienzi also explained that counselors at abortion clinics do not have to disclose their own lack of medical training, nor do they have to disclose that they do not provide help with adoption, parenting classes, or carrying a pregnancy to term. Reviewing the legislative history of the laws, Rienzi argued that they were enacted because the legislatures disagreed with past pro-life speech about the health effects of abortion, which he said is an impermissible basis to regulate speech.

Graber (above) disagreed, arguing that pregnancy center disclosure requirements are constitutional. He explained that “forced speech” cases generally involved speech with which the speaker disagreed, while pregnancy center speakers presumably agree with the statement that they do not provide abortions. Graber further argued that if someone could reasonably believe the centers offered abortion, then the government would have a legitimate interest in regulating them to make sure that no one was confused.

Although the typical commercial speech analysis allows the government greater latitude to regulate speech that is for “solely economic” purposes, Graber argued that providing pregnancy information is a service, and that the commercial speech analysis should extend to people who provide “goods and services.”